Hernandez v. Federal Bureau of Prisons et al

Filing 22

ORDER denying 21 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 9/15/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE LOPEZ HERNANDEZ,

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Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

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Case No.: 1:15-cv-00573-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 21)

Plaintiff Jose Lopez Hernandez is a former federal prisoner proceeding pro se in this action

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brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

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388, 91 S. Ct. 1999 (1971). This action currently proceeds on Plaintiff’s claims against Defendants

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H.A. Rios, Jr., Saragosh, and Estrada for the failure to protect him from the initiation of a June 7, 2011

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beating by members of the Mexican Mafia, in violation of the Eighth Amendment. Plaintiff consented

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to magistrate judge jurisdiction. (ECF No. 14.)

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Currently before the Court is Plaintiff’s motion for the appointment of counsel, filed

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September 12, 2016. (ECF No. 21.) Plaintiff states that he was harmed by the inmates as he claims,

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that he requires counsel to help him obtain discovery and regain legal documents, that his case is

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complex, and that he is indigent and unable to afford to acquire legal counsel.

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Plaintiff does not have a constitutional right to appointed counsel in this civil action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent
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Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating

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counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in

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light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations

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omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even if it is

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assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases

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alleging the failure to protect from an attack by inmates almost daily. Further, at this early stage in the

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proceedings, the Court cannot find any likelihood of success on the merits. Also, based on a review of

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the record in this case, the court does not find that Plaintiff cannot adequately articulate his claims. Id.

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Plaintiff’s arguments, pleadings, and motions are comprehensible. Thus, the Court does not find this to

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be a serious and exceptional case necessitating the appointment of counsel at this time.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for the appointment of counsel
(ECF No. 21) is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 15, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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